Her Majesty the Queen - v. -, 2022 SKPC 28

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 28 Date: June 27 2022 Information: 991155814 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Seth Adam Lopez Appearing: Matthew Dahl For the Crown Alan Pearse For the Accused CHARTER VOIR DIRE AND TRIAL DECISION RYBCHUK, J INTRODUCTION [ 1 ] Seth Lopez is charged with impaired operation of a conveyance contrary to

section 320.14(1) (

a) of the Criminal Code . He provided a Notice to Seek Remedy for violations of his rights under the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ]. A blended Charter voir dire and trial was

held on April 4, 2022. [ 2 ] The Crown has conceded breaches of Mr. Lopez’s

section 7 rights by destruction of evidence and his

section 9 rights by overholding. The issues to be decided are the appropriate remedy for the Charter violations and whether Mr. Lopez is guilty of impaired driving. FACTS [ 3 ] At approximately 10:30 p.m. on Saturday, March 13, 2021 a white BMW vehicle stopped at the intersection of Arcola Avenue and Park Street in Regina, Saskatchewan. It did not move for several turns of the traffic lights, so the people in the vehicle behind it decided to phone the police. [ 4 ] When the police arrived, the vehicle still had not moved for several more turns of the traffic lights. The accused, Mr.

Lopez, was found by the police passed out in the driver’s seat of the vehicle, which was running, locked and in drive. He was slouched over in the seat with vomit or saliva running down his face. [ 5 ] The police knocked loudly on the window for one to two minutes, but Mr. Lopez did not move at all. The police were required to smash the window to gain entry and turn off the vehicle. Mr. Lopez did not initially respond to the smashing of the window. When he eventually did wake up, Cst. Wilkinson observed that Mr. Lopez was groggy and had vomited all over himself. He reeked strongly of beverage alcohol.

His eyes were glossy. He had slurred speech and was very slow moving. [ 6 ] Cst. Wilkinson arrested Mr. Lopez for impaired driving and took him to the police station. The breath technician, Cst. Martinson, observed that Mr. Lopez was lethargic and his body mannerisms were in a depressed state. He could smell a strong odour of beverage alcohol on Mr. Lopez’s breath. Mr. Lopez was distant, not focused, and his eyes were glassy and bloodshot. Mr. Lopez kept falling asleep on the bench in the hallway outside the breathalyzer room while awaiting his breath tests.

During the 15-minute observation period prior to the first breath test, Mr. Lopez vomited. This occurred three times in total over the course of approximately one hour. Mr. Lopez urinated in his pants while at the station. [ 7 ] Both police officers decided that given Mr. Lopez’s condition, he would not be capable of providing two samples of breath. They turned Mr. Lopez over to Staff Sgt. Davey who was the person in charge of police cells that night and decided when people detained in custody could be released. [ 8 ] Sgt.

Davey outlined the general procedures that are followed when people are detained in cells, but she had no recollection of Mr. Lopez and no notes of her involvement with him, other than “cell checks.” Sgt. Davey also had no recollection of speaking with Mr. Lopez’s mother, or with another officer relaying information to her that Mr. Lopez’s parents could come pick him up. It was her opinion that 14 hours’ detention in police cells was not extreme “in any way, shape or form.” [ 9 ] According to Sgt. Davey, the CCTV video system in police cells is overwritten two weeks after it is recorded. Cst.

Martinson believes this two-week retention period exists due to a lack of data storage capacity. Mr. Lopez’s counsel requested from the Crown disclosure of the CCTV video in police cells three days after he was released from custody on March 17, 2021 and then again on May 1, 2021. Despite the original request occurring within the two-week retention period, the CCTV video in police cells was destroyed and never provided to Mr. Lopez. [ 10 ] Mr. Lopez’s mother is an emergency room nurse. She was driving home from work the evening of March 13, 2021 when she saw her son’s vehicle stopped in the middle of the road.

She got out of her vehicle and identified herself to the police who told her she would be able to pick up her son after eight hours. Mrs. Lopez went home but could not sleep that night. She called the Regina Police Service who transferred her to the detention line, but there was no one picking up and no way for her to leave a message either. She therefore arranged for her husband go pick up their son first thing in the morning. [ 11 ] Mr. Lopez’s father went to the police station before 8:00 a.m. on March 14, 2021 but was told to come back at 8:30 a.m., which he did. Mr.

Lopez was then told that he was not allowed to pick up his son and he would have to wait for his son to contact him.

[12] Mr. Lopez’s father relayed this information to his wife who then phoned the Regina Police Service again around 9:00 a.m.and asked them what was going on, noting that the police had their son for almost 12 hours. She was advised that it was a “case to case”basis. The police did not know when her son would be released and thought it might even be after court the next day. Mrs. Lopezpanicked and started calling a lawyer. [13] It was not until 1:04 p.m. that afternoon that Mrs. Lopez finally received a phone call from her son indicating he could now bepicked up. Had Mrs.

Lopez been allowed to pick up her son anytime earlier, she would have done so immediately. CHARTER BREACHES [14] Mr. Lopez alleged a number of violations of his Charter rights. He has withdrawn some of these allegations, while the Crownhas acknowledged that there was an overholding and that evidence was destroyed. [15] Mr. Lopez was arrested at approximately 10:30 p.m. and was not released by the police until approximately 1:00 p.m. the nextday. Despite repeated inquiries from his mother and visits to the police station by his father, Mr. Lopez was held in police custody forapproximately14 hours.

As the Crown did not offer any explanation for why he was detained this long and why he could not have beenreleased earlier to the care of his parents, this overholding breached Mr. Lopez’s

section 9 Charter rights to be free from arbitrarydetention. [16] The Regina Police Service also destroyed the police cells video evidence that showed the overholding by police despite Mr.Lopez requesting this evidence from the Crown within the short two-week period that it existed. As the Crown did not offer anyexplanation for the destruction of this evidence, it has not discharged its burden of establishing that the destruction did not occur as aresult of “unacceptable negligence” (R v La, (SCC), [1997] 2 SCR 680; R v Peterson, 2022 ABQB 365 at paras 25-27[Peterson]) which breached the Crown’s duty of disclosure and Mr. Lopez’s

section 7 Charter rights to make full answer and defenceand receive a fair trial. CHARTER REMEDIES [17] Section 24(1) entitles anyone whose Charter rights have been infringed to obtain “such remedy as the court considersappropriate and just in the circumstances.” It is difficult to imagine language which could give the court a wider and less fettereddiscretion in crafting remedies than section 24(1) (R v Mills, (SCC), [1986] 1 SCR 863 at para 278). Nonetheless, thediscretion is not unfettered.

What is appropriate and just will depend on the facts and circumstances of the particular case (Vancouver(City) v Ward, 2010 SCC 27 , [2010] 2 SCR 28 at para 19). [18] Courts are to approach Charter remedies purposively and give vitality to the maxim, “where there is a right, there must be aremedy” (Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 25, [2003] 3 SCR 3 [Doucet-Boudreau]).

Thispurposive approach consists of two specific requirements: 1) The remedy must be “responsive” and promote “the purpose of the right being protected”; and 2) The remedy must be effective (Doucet-Boudreau at para 25; Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at para 142, [2011] 3 SCR134). [19] Courts should expect evolution in the understanding of what is required to appropriately remedy Charter violations.Therefore, the approach to Charter remedies must remain flexible and responsive to the needs of a given case, and they should remainopen to employing remedies with “novel and creative features when compared to traditional and historical remedial practice” (Doucet-Boudreau at para. 59).

[ 20 ] See also paras. 55-58 of Doucet-Boudreau which set out the requirements of an “appropriate and just” remedy under section 24(1), including that the remedy be meaningful to the claimant and fair to the party against which it is imposed.

In Peterson at para 38 , Renke J. set out some of the factors bearing on the determination of an “appropriate and just” remedy under section 24(1) in the context of lost or destroyed evidence, which include: • the nature of the Charter violation or the seriousness of the Charter -infringing conduct • the degree of impairment or prejudice to the accused’s fair trial rights • the timing and notice of the Charter breaches • the availability of measures that would mitigate or ameliorate the prejudice [ 21 ] Renke J. also listed at paras 40-41 some the remedies that may be granted under section 24(1) for breaches of the Crown disclosure obligation: • disclosure order • re-opening proceedings • recalling witnesses for examination or cross-examination • adjournment to permit the accused to subpoena additional witnesses • self-instruction that the missing evidence did not advance the Crown’s case or that the absence of evidence may be relevant to whether the Crown has established its case beyond a reasonable doubt • reduction in sentence • exclusion of evidence • declaration of a mistrial • stay of proceedings • costs [ 22 ] The remedy Mr.

Lopez seeks is a stay of proceedings. A stay of proceedings is an exceptional remedy that is rarely granted and only as a last resort. Renke J. provided a good

summary of the law and legal test for a stay of proceedings for an abuse of process in Peterson starting at para 43 : [43] The test for a stay is the same whether the Charter violation concerned lost or destroyed evidence or late disclosure. In R v Babos , 2014 SCC 16 , Justice Moldaver wrote as follows at paras 30-32: [30] A stay of proceedings is the most drastic remedy a criminal court can order .... It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits.

In many cases, alleged victims of crime are deprived of their day in court. [31] Nonetheless, this Court has recognized that there are rare occasions —the “clearest of cases” — when a stay of proceedings for an abuse of process will be warranted ....

These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) .... [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits” (ibid., at para. 57).

See Dixon at para 35; Blanchard at para 25; Cloutier at para 71; Janeiro at para 125; R v Garnot, 2018 BCCA 107 at para 31. [44] The focus of the first two tests is on the degree of actual prejudice caused and whether that prejudice is irreparable. [45] Irreparable prejudice is not made out only on the basis that “putting forward the position” of the defence has been made moredifficult: R v Dymkowski, 2021 ONSC 8428, Goodman J at para 130. [46] If evidence has been lost or destroyed, other available evidence may provide equivalent information or inferences or equivalentinformation could be available through procedures such as cross-examination.

The impact of the missing evidence must be assessed inthe context of other available evidence: Dymkowski at paras 130-131; R v GC, 2021 ONSC 828, Roger J at para 60; R v Sheng, 2010ONCA 296 at paras 46-47. [23] The seriousness of the charge will also be a consideration in deciding whether to grant a stay, with more serious chargesrequiring a greater demonstration of prejudice (R v O'Connor, (SCC), [1995] 4 SCR 411 at para 78 [O’Connor]).

Overholding [24] In Canada, the controlling authority for the remedy of a stay of proceedings under section 24(1) of the Charter is R v Babos,2014 SCC 16, [2014] 1 SCR 309 [Babos]).

In Saskatchewan, there is binding appellate authority that suggests a stay of proceedings isnot an appropriate and just remedy for an overholding breach under section 24(1) of the Charter (see: R v Poletz, 2014 SKCA 16, 433Sask R 155 [Poletz], which was decided nine days before Babos). [25] In Poletz, Caldwell J. determined that there is no nexus between the overholding and a conviction for impaired operation towarrant a stay of the proceedings.

Second, arbitrary detentions of this nature do not fall into the residual category because the state’smisconduct is minor and not so egregious that the mere fact of going forward in the light of it will be offensive. The remedy of a stay isout of proportion to this type of breach and could bring the administration of justice into disrepute.

Finally, there is an alternative remedyavailable – trial judges can take the arbitrary detention into account when sentencing to reduce the sentence (Poletz at paras 10-12). [26] However, there is also binding Supreme Court authority that suggests section 24(1) generally should not be used to reduce asentence in order to remedy the violation of a convicted person’s rights, as any such alleged violations can be considered in the judge’sexercise of discretion in sentencing without relying on section 24(1), provided that they bear the necessary connection to the sentencingexercise (R. v.

Nasogaluak, 2010 SCC 6at paras 48-49 and 63-64, [2010] 1 SCR 206). Section 24(1) also generally cannot be used toreduce a sentence below a statutorily mandated minimum sentence (Nasogaluak at paras 5-7, 45, 55 and 63-65) which means the remedyis ineffectual in most overhold situations where a sentence at or near the minimum would have been imposed even without the Charterbreach. [27] The case law generally does not support a stay for overholding breaches (R v Iseler, (2004), (ON CA),190 CCC (3d) 11 (Ont CA)). Mr.

Lopez cites the decision of R v Bennett, 2009 ONCJ 95 [Bennet] as a case where a stay was granted.However, Bennett is distinguishable because it involved an accused who was detained in a police cruiser when they arrived at the policestation and before the breath samples were taken. No explanation was offered for the practice of keeping detainees handcuffed in sallyport while waiting to be processed inside. The

section 9 arbitrary detention was the accused being handcuffed behind his back, indiscomfort and alone in the back of a police cruiser parked at the station for an hour. Further, as a result of the accused being detained inthe police cruiser for over two hours, one hour and fourty minutes of which he spent handcuffed, the accused experienced pain in histhumb for about a month and lost sensation in his finger that also led to a finding of a violation of his

section 12 right against cruel and

unusual treatment. The Court also found a violation of the accused’s

section 10(

b) right to retain and instruct counsel without delay. It was the amalgam of these violations, including the injuries sustained by the accused, that led to the conclusion that a stay of proceedings was the only appropriate remedy ( Bennett at paras 50-57 ; see also: R v Bell , 2009 BCPC 193 at paras 25-26 where injuries sustained while being manhandled in the booking area and a nine-hour overhold justified a stay of proceedings). [ 28 ] Mr. Lopez also cites numerous reported and unreported authorities from Alberta and one authority from British Columbia where stays were granted in cases of overholding.

It is important to note that all but one of those decisions pre-date the Supreme Court’s decision in Babos and the nearly contemporaneous decision of the Saskatchewan Court of Appeal in Poletz . The clear guidance from these authorities suggests that a stay of proceedings is not the only appropriate remedy for overholding, and these extra-provincial cases have little application in Saskatchewan. [ 29 ] Mr. Lopez submits that the Supreme Court’s recent decision in R v Reilly , 2020 SCC 27 , 66 CR (7th) 231 [ Reilly ] revitalizes a stay of proceedings as a remedial option in cases of overholding.

However, the state’s conduct in that case was much more egregious than this case. In Reilly the state was routinely over-holding accused persons more than 24 hours. This was an ongoing and systemic problem known to the police, Justices of Peace, Crown prosecutors and defence counsel, but was not being satisfactorily addressed in a timely fashion. Reilly concerned a detainee’s right to be brought before a Justice of Peace and not be denied bail without just cause.

This case concerns a detainee’s right to be released as soon as practicable. [ 30 ] As I stated in R v Kelln , 2021 SKPC 29 at para 159 [ Kelln ]): [159] Finally, defence counsel referred to the decision in R v Reilly , 2020 SCC 27 , 66 CR (7th) 231 [ Reilly ]. However, I find that this decision has little application here. That decision involved an accused who was held in custody for over thirty hours before being brought before a Justice of the Peace under

section 503 of the Criminal Code which requires that an accused be brought before a Justice of the Peace within twenty-four hours for a bail hearing. This is much different from the present case where the accused was held for less than six and half hours for safety and welfare reasons before being released under

section 498 of the Criminal Code . While both these provisions of the Criminal Code deal with release of an accused as soon as practicable,

section 503 does not have the same underlying public interest considerations built into it. Reilly also addressed systemic issues within the Edmonton Police Service regarding the harsh conditions and length of time before accused persons were brought before a Justice of the Peace for bail hearings in violation of their sections 7 , 9 and 11(

e) of the Charter . Those same considerations are not present here. [ 31 ] The approach adopted in Poletz has been consistently followed by lower courts in Saskatchewan producing a substantial body of overholding caselaw (see for example: R v Marcil , 2015 SKQB 79 at para 30-31 , 470 Sask R 307; R v Binetruy , 2015 SKQB 206 at para 23-31 , 478 Sask R 260; Mullin v R , 2017 SKQB 378 at para 52-56 ; Knight v R , 2018 SKQB 303 at para 41 ; Getz v R , 2021 SKQB 67 at para 103-106 ; R v Kortmeyer , 2021 SKPC 10 at para 118-121 [ Kortmeyer ]; Kelln at para 161 ; and R v McCallum , 2022 SKPC 3 at para 103-105 ).

Even in light of the judicial disapprobation of overholding contained in these cases and Reilly , Saskatchewan courts continue to conclude that a reduction in sentence is the appropriate remedy as the number of overhold cases continues to grow unabated (note for example: Getz , Kortmeyer , Kelln and McCallum were all decided after the release of the Supreme Court decision of Reilly ). [ 32 ] Impaired driving simplicter is a serious offence, but it is not among the most serious offences found in the Criminal Code requiring a greater demonstration of prejudice.

In this case, the overholding occurred after the police investigation and gathering of evidence of impairment had already taken place. Additional evidence of impairment or non-impairment may have been found on the police cell video. There is a small prejudice to Mr. Lopez’s rights to full answer and defence and a fair trial under the “main” category referred to in Babos . [ 33 ] There was evidence Mr. Lopez was highly intoxicated and that it might not have been safe or in the public interest to release him on his own.

However, there also was evidence that he was able to understand and interact with police and that he provided police with a valid waiver of his right to counsel. Cst. Wilkinson testified that Mr. Lopez could make a decision whether he wanted to remain in cells or go home with his parents. But he could not recall why he did not give this opportunity to Mr. Lopez. There was no evidence that the police made any efforts to facilitate Mr. Lopez contacting somebody to come pick him up from the detachment.

There also was no evidence put forward explaining why his parents could not pick him up after they repeatedly contacted police and came down to the police station for that purpose. That is what makes this overholding serious. It reflects poorly on the administration of justice and risks undermining the integrity of the justice system under the “residual” category in Babos . [ 34 ] The overholding is compounded by the fact that the police captured and seized from Mr.

Lopez video evidence of his time in police cells that would have shed light on these issues and his condition while he was being overheld, yet the they retained this evidence for only a short period of time before destroying it despite the Crown having received a request to preserve and produce this video

evidence during the time it existed. This is a rare, modern-day case of the police locking someone up and throwing away the video. Thecumulative effect of this conduct by state actors offends basic societal notions of fair play and decency.

Proceeding with a trial in the faceof this state conduct is harmful to the judicial system and the rule of law. [35] Another remedy that is sometimes granted in cases of overholding is an exclusion of evidence (see for example: R v Rahman,2016 ONCJ 718 at para 27 [Rahman] where breath readings evidence was excluded and pre-trial credit given for seven hours theaccused spent overheld in custody while police ignored him without asking if there was someone who could retrieve him from thestation). [36] The wording of section 24(2) indicates that it was intended to be the primary basis for the exclusion of evidence because of aCharter violation.

It should not ordinarily be circumvented by resort to section 24(1) (R v Collins, (SCC), [1987] 1 SCR265 at pg. 276; R v Therens, (SCC), [1985] 1 SCR 613 at pgs. 620-621). Nevertheless, evidence may be excludedpursuant to section 24(1) in rare cases where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process orthe integrity of the justice system (R v Bjelland, 2009 SCC 38 , [2009] 2 SCR 651 at para 19; Canada (Citizenship andImmigration) v Harkat, 2014 SCC 37 at para 95, [2014] 2 SCR 33). [37] In Rahman, the overhold occurred before and after the breath readings were taken.

In this case, no breath readings were takenthat can be excluded. There is only the observations of impairment made by civilians and police back at the scene and when they firstarrived at the detachment, before Mr. Lopez was placed in police cells. There was some connection between the observations ofimpairment by police and the overhold; Mr. Lopez’s high level of intoxication led to the officers placing him in the “drunk tank”. It waspart of the same chain of events and course of police conduct.

But most of the observations occurred in public on a city street whereasthe overhold occurred later in private in a police cell. They are separated in time and location. A causal connection does exist between thegathering of this evidence and the Charter breach, but the temporal and contextual connection is too tenuous and remote for me to beable to safely exclude this evidence without impairing the truth-seeking function of the court and the fairness of the trial from society’sperspective. [38] The Charter breaches were serious. Mr.

Lopez was deprived of his liberty for a considerable period of time and the onlyevidence of that breach was subsequently destroyed by police, which risks undermining the integrity of the justice system. The impact onMr. Lopez’s rights not to be deprived of liberty was considerable. The impact on his rights to full disclosure and trial fairness was not asgreat. The evidence of impairment remains unaffected. Society’s interest in adjudication on the merits is strong. A balancing of all thesefactors weighs in favour of not excluding the evidence of impairment.

I have at my disposal an arsenal of other less intrusive remediesthat can be marshalled to protect the integrity of the judicial system. I therefore decline to employ the remedy of an exclusion of evidencein the facts of this case. Lost or Destroyed Evidence [39] A judicial stay of proceedings can be granted for serious violations of the Crown’s disclosure obligation where a disclosureorder would be insufficient to remedy the prejudice resulting from the violation (O'Connor at paras 76-77; R v Carosella, (SCC), [1997] 1 SCR 80 at paras 52-56).

Therefore, a stay of proceedings is an available remedy when evidence has been lost ordestroyed. [40] However, the mere fact that relevant evidence has been lost or destroyed does not entitle an individual to a stay ofproceedings. To justify a stay, the accused must show that the lost or destroyed evidence prejudiced him in a substantial or material way(R v Sheng, 2010 ONCA 296 at para 46, 254 CCC (3d) 153).

As the Ontario Court of Appeal stated in R v Bradford, (2001), (ON CA), 151 CCC (3d) 363 (Ont CA) at para 8 (leave to appeal refused – [2001] SCCA No 131 (QL)), “[a]ctualprejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of theevidence makes putting forward the position more difficult.” [41] One way to determine the amount of actual prejudice to an accused is to examine whether there are any alternative remediesavailable to address the loss of the evidence.

One such alternative remedy is to invite the trier of fact to infer that the lost evidence wouldnot have assisted the Crown, which could impact whether the Crown has proven its case beyond a reasonable doubt. This alternativeremedy has been employed by the Ontario Court of Appeal in recent cases as an appropriate and just remedy in the circumstances of lostor destroyed evidence (R v Hersi, 2019 ONCA 94 at para 35-36, 373 CCC (3d) 229; and R v Janeiro, 2022 ONCA 118 at para 126).

[42] Another subsidiary remedy that is rarely available under section 24(1), except in exceptional circumstances that do notwarrant a stay of proceedings, is costs against the Crown in criminal proceedings (R v Horan, 2008 ONCA 589 at para 30, 237 CCC (3d)514). A trial court can grant legal costs against the Crown for conduct that constitutes a “marked and unacceptable departure from thereasonable standards expected of the prosecution” (R v 974649 Ontario Inc. Dunedin, 2001 SCC 81 at para 87, [2001] 3 SCR 575[Dunedin]; R v Munkonda, 2015 ONCA 309 at para 140; R v Matthews, 2022 ABCA 115 at paras 97-98).

Mere inadvertence or negligenterrors are not enough (R v Leduc, (2003), (ON CA), 66 OR (3d) 1 at paras 159-160, 176 CCC (3d) 321; R vPidskalny, 2012 SKCA 28, 385 Sask R 276) while egregious misconduct is too high of a standard (R v Melrose, 2016 BCCA 292 atpara. 36, 338 CCC (3d) 413). [43] Crown failures relating to non-disclosure are the most frequent basis upon which costs have been awarded and most of thejurisprudence around costs in criminal cases arises from this context.

Indeed, the Supreme Court of Canada remarked in Dunedin at para80, that the remedy of costs against the Crown plays a “vital role” in enforcing the Crown’s constitutional disclosure obligations.McLachlin C.J.C. elaborated further at para 81 of Dunedin as follows: [81] Such awards, while not without a compensatory element, are integrally connected to the court’s control of its trial process, andintended as a means of disciplining and discouraging flagrant and unjustified incidents of non-disclosure.

Deprived of this remedy, aprovincial offences court may be confined to two extreme options for relief – a stay of proceedings or a mere adjournment – neither ofwhich may be appropriate and just in the circumstances. Since untimely pre-trial disclosure will rarely merit a stay of proceedings whenthe court can protect the fairness of the trial with a disclosure order (O’Connor, supra, at paras. 75-83; Canada (Minister of Citizenshipand Immigration) v.

Tobiass, (SCC), [1997] 3 S.C.R. 391, at paras. 90-92), denying the provincial offences court thejurisdiction to issue a costs award may deprive it of the only effective remedy to control its process and recognize the harm incurred,even in cases involving unjustified and flagrant disregard for the accused’s rights.

In these circumstances, the issuance of a costs awardis a quintessential example of “the development of imaginative and innovative remedies when just and appropriate” that Lamer J.identified as essential to the meaningful enforcement of Charter rights through the s. 24 guarantee (Mills, supra, at p. 887). [44] Thus, an award of costs is a monetary remedy used by courts to regulate and discipline the conduct of litigation, not atcompensating for an underlying wrong. Costs must not be confused with damages, especially punitive damages.

In criminal litigation,the term “costs” refers to an order for payment of money in compensation for a portion of the accused’s expenses of litigation.

Whereasin civil litigation, “damages” is a civil remedy used to compensate the plaintiff for losses caused by the defendant, and sometimes topunish the defendant’s wrongdoing (R v Leblanc, 1999 NSCA 170 , [1999] NSJ No 179 (QL) (CA) at para 16 [Leblanc]). [45] An award of legal costs against the Crown is available only in response to misconduct by the Crown, not the misconduct of athird party such as the police, unless the Crown is also a participant in that misconduct (Leblanc at para 16; R v Tiffin, 2008 ONCA 306at para 96; R v Singh, 2016 ONCA 108 at para 45). [46] A $5,000 costs order against the Crown was upheld on appeal in R v Abrey, 2007 SKQB 213 at paras. 27-29, 297 Sask R 313where the Crown failed to respond to the accused’s requests for legible copies of a police officer’s notes at an impaired driving trial.

TheCrown’s refusal to provide the requested disclosure demonstrated a marked and unacceptable departure from the reasonable standardsexpected of the prosecution. [47] There are recent Saskatchewan decisions dealing with the Crown’s failure to disclose police cells video evidence as a result ofloss or destruction in R v Sanche, 2015 SKQB 321, [2016] 3 WWR 541 [Sanche]; R v Skorka, 2020 SKPC 49 [Skorka]; and Kortmeyer.While not finding breaches of

section 7 per se and commenting in obiter, Chicoine J. would have concluded that a stay of proceedingswas an appropriate remedy in Sanche at para 68, while Kovatch J. and Green J. would not have concluded that a stay of proceedings wasappropriate in Skorka at para 40 and Kortmeyer at para 105, respectively. [48] Mr. Lopez suffered modest, but not “substantial or material”, prejudice by the destruction of the cells video evidence.

Puttingforward his full defence may have been made more difficult by the loss of this evidence, but he was not unable to put forward a defenceto the charge of impaired operation of a motor vehicle. The cells video was far enough removed from the time of operation that it wouldhave had minimal relevance or probative value.

The Crown disclosed the video incident capture systems [VICS] from the police in-carcameras at the scene and during transport, as well as the video from all other areas of the police detachment, which would haveconstituted the best evidence of impairment during trial that differentiates this case from Sanche at para 56. The cells video evidencewould have been more valuable adjudicating the overholding Charter breach and the prejudice posed both to Mr.

Lopez and the justicesystem in general. [49] Alternative remedies are available that will adequately disassociate the justice system from the impugned state conduct going

forward. I can infer that the destroyed evidence would not have assisted the Crown. I can also order costs against the Crown. [ 50 ] The Crown’s duty to disclose all relevant information gives rise to an obligation to preserve relevant evidence. Defence counsel was diligent in requesting from the Crown the video evidence three days after it had been created.

This request to preserve the evidence fell well within the two-week period for retention of police cells video, which is unreasonably brief ( see: R v Banford , 2011 SKQB 418 at para 18 , 386 Sask R 141 where a 55 day RCMP detachment video retention period was deemed inadequate to fulfill disclosure obligations). [ 51 ] Regardless of the adequacy of the police’s two-week retention policy, when the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it.

Here the Crown trial prosecutor could not explain why the Crown docket prosecutor did not request the video evidence of the police and how the Crown permitted it to be destroyed. The Crown did not take reasonable steps to preserve the evidence for disclosure which is presumed to have been caused by unacceptable negligence. This constitutes a marked and unacceptable departure from the reasonable standards expected of the prosecution. Costs need to be imposed to compensate Mr. Lopez for the harm caused to him by the unjustified and flagrant disregard of his

section 7 Charter rights and for the legal costs incurred having to defend these rights. [ 52 ] At the end of the day, a suite of remedies can be assembled that will address the cumulative effects of all the Charter breaches that occurred in this case without having to resort to the most drastic remedies of an exclusion or stay. [ 53 ] The police showed a callous and reckless disregard for Mr. Lopez’s basic civil liberties. The Crown did not even attempt to justify these breaches which together represent an egregious form of state conduct.

The lengthy overhold and the destruction of the evidence of the overhold is an abuse of process by agents of the state. An amalgamation of remedies will sanction and discourage such misconduct by an amalgamation of state officials. [ 54 ] There are a host of other alternative remedies that were not suggested by either party, but I nevertheless considered and determined were not useful or appropriate to remedy the Charter breaches in this case. An adjournment or disclosure order cannot produce destroyed evidence. No witnesses can be recalled or produced that will add anything to the breaches.

No remedy can compel the Crown to provide an explanation for a Charter breach. The test for a mistrial is a little less difficult than a stay, but the considerations are much the same. A mistrial would not be a viable remedy for Mr. Lopez either. Balancing of Remedies [ 55 ] Section 24(1) of the Charter entitles Mr. Lopez to an “appropriate and just” remedy for the violations of his Charter rights. This is not a “clearest” of cases where a stay of proceedings or exclusion of evidence is warranted, but it is close to it.

Society should not be deprived of the adjudication of this case on its merits, but police also should not be allowed to overhold arrested people and destroy evidence of their overholding without explanation in order to safeguard the integrity of the justice system. To address the combined effect of these breaches a combination of remedies can be fashioned that are both meaningful to Mr. Lopez and fair to the police, Crown and society.

The remedies include a self-instruction of a non-assistance inference, a reduction in sentence and costs that are appropriate and just in the circumstances of this case. [ 56 ] There must be some relief to Mr. Lopez for the harm caused and some consequence to the state for its flagrant disregard of his Charter rights or the integrity of the justice system will be compromised. The remedies must be proportionate and responsive. They also must promote the purposes of the rights being protected – arbitrary detention, full disclosure and trial fairness.

Rights are meaningless without an effective remedy. [ 57 ] These remedies are intended to denounce and deter these forms of abusive state misconduct. Should the state persist in these types of Charter violations without offering any explanation this may be a sign the problems are becoming chronic and the Court will have to consider escalating the remedies available to it in order to preserve the integrity of the justice system. IMPAIRED OPERATION [ 58 ] To secure a conviction under

section 320.14(1)(a), the Crown must establish beyond a reasonable doubt that the ability of Mr. Lopez to operate a motor vehicle was impaired to any degree by alcohol or drug or combination of alcohol or drug. This is a codification

of the common law principle outlined in R v Stellato, (1993), (ON CA), 78 CCC (3d) 380 (Ont CA) at para 14(affirmed (SCC), [1994] 2 SCR 478) that the level of impairment required to sustain a conviction is “any degree ofimpairment”. The legal test for impairment was affirmed by the Saskatchewan Court of Appeal in R v Cramer, 2019 SKCA 118 at paras19-21, where Richards C.J.S. emphasized that the impairment need not be marked and even a slight impairment is sufficient to sustain aconviction.

The Court noted, per R v Hall (1994), (SK CA), 125 Sask R 62 (Sask CA), that a trier of fact may be ableto infer impairment from behaviour which is far outside the norm, or from something less. [59] When considering the evidence of impairment, the trial judge is required to look at all the evidence and not undertake a piece-meal analysis. (Hall at para 13, citing R v Morin, (SCC), [1988] 2 SCR 345 at pp. 361 and 362). A trial judge cannotconsider or infer an alternative explanation for the indicia of impairment without some foundation in fact for the inference to be drawn.

Ifthere is no factual foundation for the inference, it is not a true inference and is simply pure speculation (R v Fabick, 2009 ABPC 350 at paras 41-42; see also: R v Bailey, 2005 ABPC 61 at para 60, 32 CR (6th) 344 and R v Wallace, 2010 ABPC 38 at paras 45-52). [60] As Gray J. stated in R v Hogan, 2014 SKPC 55 at para 31, 440 Sask R 97, “[i]t is not for the Court to speculate whetherthere are possible alternative explanations for the symptoms and the driving, but rather the Court is obliged to look at the picture that ispainted by all of the evidence and make a determination only on that basis.” [61] Mr.

Lopez was found passed out behind the wheel of his vehicle stopped at a busy intersection. The vehicle did not move formultiple turns of the traffic lights. When police arrived the vehicle was running, locked and in the drive gear. The police could notawaken Mr. Lopez and had to resort to smashing a window to shut the vehicle off and wake him up. Mr. Lopez did not seek to rebut thestatutory presumption contained in

section 320.35 of the Criminal Code. I therefore find he was operating his motor vehicle at the trafficlights on a public roadway. [62] The police observed many other indicia of impairment, including that Mr. Lopez had vomited all over himself. There wasvomit or saliva coming down his face. He smelled strongly of beverage alcohol. He had glossy or glassy bloodshot eyes, slurred speechand was “super slow moving”. He was groggy and lethargic with depressed mannerisms. He was distant and not focused. He kept fallingasleep at the police station.

When awakened, he kept vomiting so many times that the police could not take any samples of breath fromhim. He urinated his pants at the station. Mr. Lopez’s behaviour was far outside the norm. [63] I have applied the remedy of an inference that the destroyed video in police cells would not have assisted the Crown inmaking out its case. But I must assess the impact of this missing evidence in the context of all the other available evidence. The VICSvideo from the police cruisers and the video from the rest of the police station that was provided to Mr.

Lopez is all closer in time to thevehicle operation and provide equivalent or better information as to his condition when he was dealing with police at the scene and thestation. All the missing video evidence from police cells would have disclosed was Mr. Lopez’s condition when he was alone later insidea cell. [64] The video evidence that was disclosed showed Mr. Lopez getting out of his vehicle and into the back seat of the policevehicle, being transported to the police station, in the sally port, booking area and hallways of the police station outside the breathalyzerroom and the police cells.

Combined with the police officers’ viva voce testimony of their many observations of impairment, the absenceof the missing video evidence inside cells is not sufficiently relevant and probative to raise a reasonable doubt whether the Crown hasmet its burden of demonstrating that Mr. Lopez was impaired when he was found passed out in the driver’s seat of vehicle that evening. [65] Based on the evidence heard during the trial, there is no factual foundation for any possible alternative explanations for theindicia of impairment that were observed.

Other alternative explanations of a medical condition, such as diabetic shock or epilepsy assuggested by Mr. Lopez’s counsel, is pure speculation and does not raise a reasonable doubt. Mr. Lopez did not testify and no medicalevidence was tendered suggesting Mr. Lopez suffered from a medical condition. There is no evidence that a medical problem contributedto his condition that night. When Cst. Wilkinson first arrived on the scene and could not get into the vehicle or awaken Mr. Lopez, heinitially did not know whether it was a medical emergency and called Emergency Medical Services (EMS) to be safe.

But once policesmashed the window and began interacting with Mr. Lopez, they quickly realized Mr. Lopez was intoxicated and arrested him forimpaired driving. EMS subsequently arrived on scene and checked Mr. Lopez out. They cleared him and left. [66] When the totality of the evidence is considered, the only reasonable conclusion that can be drawn is that Mr. Lopez’s abilityto operate a motor vehicle was impaired by alcohol and/or drug. As such, the Crown has proven the elements of the offence of impairedoperation beyond a reasonable doubt.

I find him guilty of this offence and enter a conviction. [67] I will now hear submissions from counsel on sentence and costs.

_____________________ Rybchuk, J